T12404
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister administering the State Service Act 2000 and David Arthur Shaw
Appeal against a decision handed down by Commissioner T J Abey arising out of T12143 of 2005 - Appeal dismissed - original decision confirmed REASONS FOR DECISION [1] In a decision issued 26 October 2005, in Matter T12143 of 2005, Commissioner Abey determined that the applicant in that matter, David Arthur Shaw, "be advanced to the first year of Level 2 with effect from 2 April, 2000, with subsequent incremental advancements in accordance with the award requirements. From this monetary calculation any amount paid by way of a More Responsible Duties Allowance is to be deducted." [2] The s.29 application by Mr Shaw claimed that he had not been progressed through the applicable classification scale in accordance with the Technical Employees Award (the award). [3] The decision of the Commissioner has been appealed by the Minister administering the State Service Act 2000 (Department of Infrastructure Energy and Resources) (the Minister) on the following grounds:
[4] In considering an appeal against an exercise of discretion the Commission relies on the principles established in the decision of the High Court in House v The King which provides:
[5] Leave to intervene in the appeal proceedings was granted to the Community and Public Sector Union (CPSU) on the basis that it is an organization with an interest in the award. The CPSU provided a history of the award. Background [6] Mr Shaw was appointed to the award Level 1 classification position in April 1997, after a satisfactory probation period he was confirmed as a permanent employee on 2 October, 1997. By April, 1999 he had received increments which placed him at the top of the Level 1 scale. [7] Mr Shaw had been undertaking additional duties and received a More Responsible Duties Allowance at 80% of the Level 2 classification salary from July 2003 to June 2005. He then resumed the Level 1 salary and duties. [8] It was not until some time in 2003 that Mr Shaw sought a movement in his classification to Level 2. Since that time advice has been provided to him by the department that to advance to Level 2 he must have completed 12 months service at the maximum salary for Level 1 and that the department, as the employer, must be satisfied with his overall performance. Those criteria have been met and that is what the award prescribes. [9] Mr Shaw claimed that he had been performing the duties of a Level 2 since April, 1998. Nevertheless he did not make any claim on the department for such recognition until some time in 2003. [10] The department also advised Mr Shaw that to be promoted to Level 2 he would be required to satisfy the qualification criterion of that classification. That could be done either by qualification or recognition of equivalent qualification and skills approved by the State Service Commissioner. The State Service Commissioner has not made any determination in respect to Mr Shaw. [11] It was alleged by the department that Mr Shaw refused to undertake an assessment despite the offers of assistance from the department. The department proposed an assessment from TAFE which apparently did not suit Mr Shaw. The department has submitted in this appeal that the reference to TAFE was merely a suggestion in the absence of any other authority being recommended by Mr Shaw or anyone else. [12] An employee recruitment form dated 29 July, 2003, recommended that Mr Shaw be directly selected for a Level 2 position and that the position be reclassified to that level. That recommendation is supported by an undated letter discussing the proposal as a so-called `classification inequity'. [13] Mr Baker on behalf of the Minister said "Now, there is certainly - and I made comment of this during my submissions originally before Commissioner Abey - that there was a point in time where you would have to query exactly what was going on between the department, or that is the HR section, his local management, and Mr Shaw as to what was occurring."1 [14] We would certainly agree. The handling of Mr Shaw's grievance has been most unsatisfactory and unprofessional. [15] We deal with the grounds of appeal. [16] Appeal ground 1
[17] Mr Shaw commenced employment as a Technical Officer Level 1, increment 3, on 2 April 1997, a classification prescribed in the award and was required to serve a six month probationary period. His assessment after his probationary period said "Excellent overall start to his career with MRT." Since that time Mr Shaw has received two further increments which by April, 1999, took him to the top of the Level 1 classification scale. [18] Mr Shaw argued that he should have automatically progressed beyond that point in accordance with the award. [19] The relevant classification standards found in the award are:
[20] Under the Salaries provision of the award and just before the Level 1 Classification definition is found the following:
[21] The other relevant classification standard is Level 2:
[22] Section 37(5) of the State Service Act 2000 reads:
[23] We reject the argument by the Minister that the Commissioner did not give proper or effective consideration to the history of the award classification or the Full Bench decision of 1991. Mr Shaw was employed in 1997 and was engaged under the terms of the award as it then prescribed. As noted by the Commissioner the relevant consideration is the award prescription and if the award does not reflect the intent of the parties or, as claimed, a decision of the Commission, it should have been amended to do so. It is incongruous that some ten years later it can be argued that the award is incorrect. Further it is unrealistic to think that to apply the terms of the award it is necessary for a party to undertake an historical adventure through decisions of the Commission to ascertain whether the award is in fact correct. We agree with the Commissioner that the relevant words are those found in the award. [24] In our view there is no ambiguity in the award proviso in respect to movement from Level 1 to Level 2 and by applying the usual rules of interpretation, if any interpretation were necessary, there is no need to rely on extrinsic material. We would agree that the employer can determine what it will accept as overall performance but that does not allow it to import into the proviso a qualification for which no award requirement is prescribed. [25] Commissioner Abey noted at para 20 that:
[26] We are satisfied that the Commissioner has taken into account the history of the award; the fact that it is alleged that the award may not express the decision of the Full Bench made in 1996 (or 1991) is not a relevant consideration but more a reflection of the apathy of the parties to it. [27] Mr Shaw referred us to the parameters for interpreting an award provision found in Matter No. T30, we agree with those parameters but have said we do not think we need to rely on them as there is no need to interpret the relevant provision of the award. [28] We detect no error by the Commission. [29] We reject appeal ground 1. [30] Appeal ground 2
[31] We have already said that we do not consider that there is any ambiguity in the award proviso. The proviso is capable of clear understanding and application. The fact that practitioners have adopted a certain approach does not make it correct, nor does it create a custom and practice which the Commission should accept. The words in the award provide the legal entitlement and the extrinsic evidence relied upon by the Minister was unnecessary. [32] The Minister submitted that "On a regular basis State Service Agencies advertise for technical employees and each advertisement that seeks to fill a vacancy at the Technical Employee Level 2 demand as a prerequisite an appropriate qualification of its equivalence."2 [33] We have no disagreement with that approach, however Mr Shaw was not an employee seeking a Level 2 vacant position, he had been employed since 1997 and was doing no more than exercising his right to progress through the classification structure. In doing so Mr Shaw relied on the proviso in the award that allows an automatic progression to Level 2 subject to him demonstrating satisfactory overall performance. [34] It was Mr Shaw's submission that he had shown by his non-acceptance of, and opposition to, the department's practice that it was not in accord with the award requirements. [35] As previously noted the Commissioner was not required to consider the actions of practitioners as there is no ambiguity. [36] We reject appeal ground 2. [37] Appeal ground 3
[38] The Minister submitted that pursuant to s.37(5) of the State Service Act 2000 the State Service Commissioner can be requested to deem an employee as meeting the award requirements. To that end the Minister made several offers and suggestions to Mr Shaw to allow that process to be undertaken. The State Service Commissioner would need to be satisfied that Mr Shaw met the requirements and the Minister offered an assessment by TAFE as satisfaction of the requirement. [39] As we are of the view that the only requirement Mr Shaw needed to satisfy was the requirement in the proviso for satisfactory overall performance any reference to the State Service Commissioner is not a matter for consideration. [40] Commissioner Abey was correct in his finding that there was no evidence or qualification determined by the State Service Commissioner produced. [41] Mr Shaw submitted that there was no State Service Commissioner's determination in respect to the position. [42] We are of the view that whether or not there was a determination by the State Service Commissioner has no bearing on the matter. Nevertheless we detect no error by the Commissioner as there was no determination for him to consider. [43] We reject appeal ground 3. [44] Appeal ground 4
[45] Commissioner Abey said:
[46] We agree with the submission of the Minister that an " ...employer has an obligation to apply the award in a manner consistent with its stated intention."3 However an employer cannot impose an additional requirement over and above the award provision. [47] In this matter the employer has not provided any further requirement to satisfy the proviso in the award which states:
[48] However what the employer has sought is that Mr Shaw satisfy the requirements of the Level 2 classification position prior to any promotion. That is an additional criterion and could be called a policy of the department, nevertheless it is not an award requirement for Mr Shaw. Whilst the requirement exists for the Level 2 position it does not exist for Mr Shaw who is subject to the proviso in the award which only talks of performance not qualifications. [49] That policy appears to be a contradiction of the award proviso which allows automatic promotion to Level 2 for an employee who has reached the top level of Level 1 and has proven overall performance to the satisfaction of the employer. [50] It was Mr Shaw's submission that the Commissioner was able to determine the requirement of the department as policy. [51] Strangely we would have thought the Minister would have endorsed the Commissioner's findings. [52] We disagree with the Commissioner in that he found that the employer can impose a qualification requirement in the award proviso which we say only seeks overall performance. The qualification requirement comes into play when assessing whether an applicant satisfies the Level 2 criteria on appointment and as we have previously noted cannot be applied to Mr Shaw who has an automatic right to promotion according the proviso. [53] Although we disagree with the Commissioner's finding we reject appeal ground 4. [54] Appeal ground 5
[55] We consider it irrelevant whether at the time of his appointment Mr Shaw had an expectation of promotion or not. His employment was subject to the terms of the award and he was entitled to pursue his rights under the award as he saw fit. Obviously he would need to satisfy any requirements of the award and if unable to do so his claim would be unsuccessful. Nevertheless it is of no relevance what his expectation was some ten years ago but the award provides that, all things being equal, promotion would be a reasonable expectation. [56] Mr Shaw submitted that the award, as well as the State Service Act 2000 and the State Service Commissioner's directions all provided the ability for promotion. [57] In our view the appeal ground has no bearing on the Commissioner's decision however we find that he has made no error and has given proper consideration to the evidence. [58] We reject appeal ground 5. [59] Appeal ground 6
[60] We are not sure as to the meaning of this ground of appeal. Commissioner Abey noted that "...the Department has offered to go to considerable lengths to assist Mr Shaw get over the line."4 We agree that the department offered to assist Mr Shaw to enable him to demonstrate that he satisfied the criteria for assessment for what we say was promotion into the Level 2 classification. We have already found that any assessment was unnecessary. [61] The Commissioner has not made any comment alleging a lack of assistance to Mr Shaw, quite the opposite in fact. [62] Mr Shaw provided all of the correspondence between himself and the department, and others, in respect to his claim for advancement. This was all put before the Commissioner. It is a matter for the Commissioner to determine which version of events he accepts and we detect no error in the exercise of his discretion. [63] We reject appeal ground 6. [64] Appeal ground 7
[65] The Commissioner determined that Mr Shaw should be promoted to Level 2 effective from April, 2000. [66] We agree with the Commissioner that Mr Shaw should be advanced to the Level 2 classification by application of the award proviso. All of the evidence supports the fact that Mr Shaw's overall performance justified the progression and that is what the award proviso requires. [67] We agree with the Minister's submission that there needs to be some rigour in the process but we are of the view that the rigour should be applied when entering the Level 2 classification other than by the award proviso. Of course it would be expected that rigour would also be applied to performance assessment at all levels. [68] Mr Shaw has relied on some discussion in conciliation in response to this appeal ground. We do not take those discussions into account. He seems to now claim that retrospectivity should be applied from 1998 and not 2000 as was determined by the Commissioner. We do not think that claim has any substance and reject it. [69] We reject appeal ground 7. [70] Mr Shaw provided copious amounts of documentation in response to the appeal grounds, much of the information provided was not relevant to our considerations and we have rejected any personal commentary which we considered derogatory, sarcastic or irrelevant. [71] Mr Shaw submitted that: "...I am merely trying to provide some surety of continued gainful employment at a level that is fully justified without exposing myself to unreasonable prejudice by my employer whilst still allowing them every opportunity with which to have a say within my employment."5 [72] The Minister responded that should the appeal be dismissed "there will be a position created at a Level 2 for him to apply to. And in all the circumstances one would anticipate that he would be the successful candidate. I am unaware of any discussion that has been had either inside or outside the department that relates to us finding some way of terminating Mr Shaw's employment."6 [73] It was also submitted that should the appeal be dismissed the Minister would recommend direct selection for Mr Shaw to the reclassified position. [74] Discussion around that point seemed to indicate that the position Mr Shaw currently holds would need to be reclassified at a Level 2 position as determined by Commissioner Abey.7 This is the request made by Mr Shaw's supervisor in the Classification Inequity application made it seems in 2003. We wonder why that was not pursued at the time. [75] We reject the appeal by the Minister and uphold the decision of the Commissioner but for the reasons we have expressed. [76] Mr Shaw is entitled to automatic promotion to Level 2 by application of the award proviso having reached the top incremental level and following satisfactory overall performance. There is no need for him to demonstrate the holding of any particular qualification or qualification equivalent. That is not what the award requires for Mr Shaw. [77] Whilst the proviso in the award could well create a contradiction for entry into the Level 2 classification one would expect that the reality would be proper performance management within a department to ensure that although the proviso allows automatic promotion to Level 2, based on certain requirements, any employee who was so promoted would be appropriately qualified and skilled. It is at the discretion of the department as to how the overall performance criterion would be applied but the department cannot add any further requirement. [78] Further we find it ludicrous that the Level 1 classification is deemed a trainee classification but an employee remains in that classification for at least five years. It may well be that the parties need to revisit this classification definition and address this anomaly.
P L Leary Appearances: Date and place of hearing: 1 Transcript PN167
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